Further Studies of Bilateral Free Trade Agreements Needed

As Larry Helfer writes, the United States has “regime shifted” in international trade, moving from the multilateral, global negotiations in the WTO, where liberalizing trade has stalled, to bilateral or regional agreements. These agreements have received insufficient attention.

In a recent paper written as part of a symposium in honor of Margaret Jane Radin, I offer one example of how we might approach such studies. In the paper, “Exporting DMCA Lockouts,” I compare anti-circumvention provisions in all of the post-DMCA FTAs. To do this, I ran dozens of blacklines, comparing those provisions in various FTAs with each other. This comparative approach revealed a significant amount about the negotiating position of the United States, viz., what aspects of these provisions on which the U.S. would be flexible. Such an approach provides information not only for other potential FTA counterparties, but also demonstrates the extent of our commitment to largely not budge from very strong anti-circumvention rules.

The amount of material for future scholarship in such an approach is quite large. Many aspects of human endeavors are affected by these FTAs–which bind not only our trading partners, but ourselves. Thus, there is a large need for academic inquiry into what these FTAs require.

In her lead paper for a symposium in her honor, Margaret Jane Radin warns that our intellectual property laws are being rewritten in ways that neglect values embedded in neighboring legal subdisciplines, such as contract, competition, and free speech law. The effect has been to aggrandize the rights of intellectual property holders, at the expense of others in society. In my comment, I apply her elegant insight to an oft-neglected realm: our spirited efforts to export our ever-strengthening intellectual property law through bilateral trade agreements. Radin critiques the Digital Millennium Copyright Act’s anti-circumvention provisions, which some companies have cleverly sought to deploy to bar competition in the after-market. Companies are seeking to exploit DMCA anti-circumvention to obtain monopolies, with varying success, in unexpected areas such as garage door openers, printer cartridges, and online multiplayer games.

I show how, through bilateral and regional free trade agreements, the United States is exporting the DMCA’s controversial and strict anti-circumvention provisions. All of the free trade agreements negotiated by the United States post-DMCA mandate the adoption of anti-circumvention provisions by our partners. A review of each of these agreements demonstrates that they carry the DMCA’s cramped vision of permissible circumvention. They thus ignore what Radin describes as the legal milieu of intellectual property, in particular, competition law, foisting upon our trading partners rules that corporations may exploit to gain monopolies in the after-market for their products. This leads to the irony that measures to free trade might lead to a legal framework that facilitates monopolies in the after-market.